Introduction

The people in charge of a charity and responsible for controlling its management and administration are its ‘charity trustees’. You may call yourselves a committee, a board, Directors or something less formal but the 2005 Act says you are the charity’s trustees and have legal responsibilities. 

There is no minimum age for charity trustees stated in the 2005 Act; however, we would expect charity trustees to be over the age of 16. If any charity trustees are under the age of 16, it would be best to get professional advice to determine if this is suitable and if there are any legal implications. Some model governing documents or specific legal forms (such as a company) state the minimum age of a charity trustee.

The 2005 Act states that charity trustees are the people who have “the general control and management” of a charity. However, there can be situations where people who are not formally appointed as charity trustees can exercise influence and even control over a charity. For example, an elected member or employee of a local authority attends meetings of the charity trustees. The 2005 Act makes the following two points clear:

1. Charity trustees are responsible for the charity and may not pass this responsibility onto anyone else as long as they remain a charity trustee.

2. Any person who, though not formally elected or appointed as a charity trustee, exercises some degree of control over a charity, may still be held legally liable as a charity trustee.

Some people are not allowed by law to be a charity trustee. Every charity trustee must make sure that he or she is not breaking the law by being a charity trustee.

Certain people are disqualified from acting as charity trustees:

• Someone with an unspent conviction for an offence involving dishonesty or an offence under the 2005 Act.
• Someone who is an undischarged bankrupt or has a Protected Trust Deed.
• Someone who has been removed under either Scottish or English Law or the courts from being a charity trustee.
• Someone who is disqualified from being a company director.

It is the responsibility of individuals to make sure they are not disqualified from being a charity trustee. Anyone who acts as a charity trustee whilst disqualified is guilty of an offence punishable by a fine or imprisonment, or both.

It is also the collective responsibility of all the charity trustees to make sure that none of them are disqualified. If you know that one of your fellow charity trustees is disqualified and you do not do anything about it, you could be in breach of your charity trustee duties.  

If you are not sure if you can be a charity trustee, you can ask us.

Good practice is to:

• Get prospective charity trustees to sign a declaration before their election or appointment to confirm they are not disqualified from acting as a charity trustee.
• Consider whether any other checks need to be carried out. For example, a Disclosure Scotland check for charity trustees working with vulnerable beneficiaries.

In some cases a charity’s governing document might say who can and cannot be a charity trustee, for example some charity trustees can only be chosen from the membership of the charity.

A disqualified person can apply to us for a waiver to lift the disqualification. You can do this in relation to a specific charity, type of charity or for charities in general. We will take into account all the circumstances when deciding if we can grant a waiver of disqualification. If you want to apply for a waiver please complete the application for waiver of disqualification as a charity trustee. 

Being a charity trustee means you are fully responsible for how your charity is run and what it does. It does not necessarily mean running the charity on a day to day basis and making operational decisions. Your charity might have volunteers or staff that do this.

All of the group of charity trustees have charity trustee duties - no matter how small your charity is. A duty is something that you must do. The group shares the responsibility equally. No individual charity trustee, for example the Chair or Treasurer, has more responsibility than the other charity trustees do. We call this collective responsibility.

See the section on charity trustee duties for more details.

Your charity’s governing document may set a minimum and/or maximum number of charity trustees needed and the minimum number required for a quorum.  A Scottish Charitable Incorporated Organisation (SCIO) must have at least three charity trustees as stated in the SCIO Regulations. For other legal forms the law does not set a minimum number of charity trustees, but it is good practice to have at least three.